New COVID-19 Families First Coronavirus Response Act: Expanding FMLA and Requiring Paid Sick Leave

Nyemaster Goode has been analyzing the provisions of the Families First Coronavirus Response Act that was passed by Congress and signed into law by the President on March 18, 2020. The Act is primarily an economic stimulus package containing a number of provisions applicable to employers. Two sections have generated numerous questions by employers: an emergency temporary expansion of the Family and Medical Leave Act (“FMLA”) and a new federal paid sick leave law, each pertaining to employees affected by COVID-19 and those serving as caregivers for others with COVID-19. These provisions of the Act with which this post is concerned go into effect on April 2, 2020.

This summary does not constitute and is not intended as legal advice. It consists of the Nyemaster Goode Labor and Employment Team’s  summary and analysis of these provisions of the Act, plus information compiled from public news and other sources. If you have specific questions, you should contact a member of the Nyemaster Goode Labor and Employment Team.

Temporary Expansion of FMLA by Creation of a New Category for Public Health Emergency Leave

The Act creates a temporary emergency expansion of the FMLA by adding a new category of leave. Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow the employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a “public health emergency.” “Public Health Emergency” is defined as “an emergency with respect to COVID-19 declared by a federal, state or local authority.” This category of leave is available only during the window of time beginning April 2, 2020 and ending on Dec. 31, 2020.

While other categories of leave under the FMLA generally apply only to employers with 50 or more employees, the new Act applies to private employers with fewer than 500 employees, with exemptions for employers that are health care providers or emergency responders. It also applies to public agencies. Exemptions may be sought by employers with fewer than 50 employees whose economic viability as a going concern would be jeopardized by complying with the new category of leave, under criteria that would be determined by the Secretary of Labor.  Therefore, this category expands FMLA coverage for this particular reason to employers who are not otherwise covered by the FMLA. And, unlike other categories of leave under the FMLA, public health emergency leave would be available to any employee who has been employed for 30 calendar days.

The Act states the initial 10 days of public health emergency FMLA leave are unpaid, unless an employee voluntarily elects to use existing accrued paid vacation leave, personal leave, or medical or sick leave to cover the unpaid leave. However, “emergency paid sick leave” created elsewhere in the Act (and discussed below) would apply to this initial period. Unlike any other type of FMLA leave, the remaining period of qualifying leave for a public health emergency is paid, up to the full 12 weeks of leave, at a rate of pay that is “at least two-thirds of the regular rate” the employee would have earned under a normal work schedule. The pay entitlement is capped at $200 per day and $10,000 in the aggregate for each employee.

At the conclusion of the leave for public health emergency, the Act imposes upon employers with 25 or more employees the same obligation under the FMLA to return the employee to the same or a substantially equivalent position. Employers with fewer than 25 employees are excluded from this requirement if unable to reinstate the employee to the same or a substantially equivalent position because no such positions exist due to an economic downturn or other reasons related to the public health emergency. However, the employer must make “reasonable efforts” to contact and reinstate the employee during the year following the conclusion of the leave period.

The Act also includes a provision stating employers of health care providers and emergency responders may elect to exclude those employees from FMLA leave for a public health emergency. In addition, the Act exempts employers with fewer than 50 employees from a civil action by an employee for violation of the Public Emergency FMLA provisions, although they are subject to an enforcement action brought by the Secretary of Labor.

Emergency Paid Sick Leave

In addition to providing a temporary expansion of FMLA leave, the Act also includes a section denominated an Emergency Paid Sick Leave Act. This provision applies to private employers with fewer than 500 employees, although it applies to public agencies regardless of the number of employees (must have at least one employee). Covered employers must provide emergency paid sick time to any employee, regardless of the length of employment, for a qualifying emergency related to the coronavirus. This section provides that an eligible employee qualifies for emergency paid sick leave by specifying the employee must be unable to work or telework due to a need for leave because:

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

• The employee is caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns [NOTE: this is not limited to just family members as elsewhere in the FMLA];

• The employee is caring for his or her son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or

• The employee is experiencing “any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

The Act adopts the existing traditional FMLA definitions of “health care provider” and “son or daughter” for emergency paid sick leave. Full-time employees receive 80 hours of emergency paid sick leave and part-time employees receive a proportionately similar amount, based on the average number of hours they work in a two-week period. The leave would not carry over from one year to the next. The Act specifies the maximum amount of pay during the leave will not exceed $511 per day ($5,110 aggregate) per employee when sick leave is used for the first three listed reasons and will not exceed $200 per day ($2,000 in the aggregate) per employee when used for the last three listed reasons. Subject to these caps, the amount of sick leave is paid at the employee’s regular rate of pay if the reason for the leave is for the first three listed reasons and two-thirds of the employee’s regular rate of pay when used for the last three listed reasons.

An eligible employee may first use the paid emergency sick leave provided under the Act for any of the authorized purposes. An employer may not require an employee to use other paid leave benefits provided by the employer before the employee uses the paid emergency sick leave provided under the Act. Thus, the 80 hours of paid emergency sick leave is in addition to any other paid leave benefits provided by the employer. The Act also prohibits the employer from requiring the employee to search for/find a replacement during the time the employee is using emergency paid sick leave.

The Act authorizes the Secretary of Labor to issue regulations excluding health care providers and emergency responder from this benefit or allowing their employer to opt those employees out of the benefit, as well as to exempt small businesses with fewer than 50 employees from the requirement of paying for sick leave if this would jeopardize the viability of the business as a going concern.

Nyemaster Goode’s Labor & Employment Department has been working to analyze this important legislation and advise our clients. Please do not hesitate to contact us with any questions.